Gauhati High Court
WP(C)/2727/2022 on 29 April, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/10
GAHC010073082022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Writ Petition (Civil) no. 2727/2022
Shri Padum Saikia
Aged about 75 years
S/o Late Jadhav Saikia
R/o Village - Niz-Baghmari,
P.O. Biswanath, P.S. Biswanath Chariali
District - Biswanath, Assam
...............Petitioner
-Versus-
1. The Power Grid Corporation of India Limited [PGCIL]
Represented by the Chairman and Managing Director
having its registered office at B-9, Qutab Institution Area, Katwaria Sarai,
New Delhi - 110016
2. The Executive Director of the PGCIL
6th Floor, Monal Tower, G.S. Road,
Opposite Assam Secretariat,
Dispur, Guwahati - 781006
3. The Senior General Manager of the PGCIL
NER Office at Lapalang, Lower Nongrah,
Shillong - 793006
4. The State of Assam
represented by the Principal Secretary
to the Government of Assam, Panchayat and Rural Development
Department, Guwahati - 6
5. The Deputy Commissioner, Biswanath
P.O. Chariali, District - Biswanath
Assam, 784176
6. The Circle Officer, Biswanath Revenue Circle
Page No.# 2/10
P.O. Chariali, District - Biswanath
Assam, 784176
................Respondents
Advocates :
For the Petitioner : Mr. P.J. Saikia, Advocate
For the Respondent nos. 1 - 3 : Mr. N.C. Das, Senior Advocate,
Mr. A. Das, Advocate
For the Respondent nos. 4 & 5 : Mr. K. Goswami, Government Advocate
Date of Hearing & Judgment : 29.04.2022
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER [ORAL]
Heard Mr. P.J. Saikia, learned counsel for the petitioner; Mr. N.C. Das, learned Senior Counsel assisted by Mr. A. Das, learned counsel for the respondent nos. 1, 2 & 3; and Mr. K. Goswami, learned Additional Senior Government Advocate, Assam for the respondent nos. 4 and 5.
2. The case of the petitioner is that he is the absolute owner and possessor of a parcel of land measuring 2 Bighas 4 Kathas 10 Lessas [02B-04K-10L], covered by Dag no. 6 and Periodic patta no. 7 ['the subject-plot', for short], located in Brahmaputra Chapori area, Mouza - Baghmara, Biswanath Revenue Circle, District - Biswanath.
3. In this writ petition, the petitioner has alleged that the respondent no. 1 i.e. the Power Grid Corporation of India Limited [PGCIL] with the aid and assistance of the officials of the District Administration had, on 31.03.2022, forcefully taken possession on a part of the subject-plot admeasuring 6 Kathas 12 Lessas out of the subject-plot. According to the petitioner, such forceful possession of a part of the subject-plot is for the purpose of installation of a tower and a transmission line. As a result of such taking over possession of a part of the subject-plot, the trees, standing structures, standing crops, tea plantations, etc., on that part of the subject-plot got damaged. Though the petitioner made an objection and reported the matter to the nearest police station, no action was taken Page No.# 3/10 to restrain the respondents from taking possession of that part of the subject-plot.
4. Mr. Saikia, learned counsel for the petitioner has submitted that the petitioner has apprehension that as the possession has been taken forcefully on a part of the subject-plot without serving prior notice to the petitioner, there is possibility of not assessing the damages caused to the trees, standing structures, standing crops, tea plantations, etc. As the provisions of the Indian Telegraph Act, 1885 and the Electricity Act, 2003 read with the guidelines framed by the Ministry of Power, Government of India on 15.10.2015 provide for assessment of compensation by following due procedure, the petitioner should be provided such protection by directing the respondent authorities to assess the damages caused to that part of the subject-plot which has been taken possession by the respondent authorities and after such due assessment, the compensation entitled to the petitioner should be paid.
5. Mr. Das, learned senior counsel appearing for the respondent nos. 1, 2 and 3 has submitted that it is the right of way over an area of the subject-plot has been taken by the respondent authorities in order to install the transmission line which is a National project. The respondent no. 1 as a licensee under Section 14 of the Electricity Act, 2003 has been delegated with the power by the Central Government to execute the project viz. Lower Subansiri - Biswanath Chariali Transmission Line. It is not in dispute that the right of way over a part of the petitioner's subject-plot is to be used for installation of the transmission line and for that purpose, the respondent authorities in the PGCIL in consultation with the District Administration, will pay due compensation to the petitioner after assessing the damages caused to that part of the subject-plot and in accordance with the guidelines framed by the Ministry of Power, Government of India. It is submitted by him that as per the guidelines framed by the Government of India has also been adopted by the Government of Assam by a notification dated 10.03.2017 published in the Assam Gazette in its issue dated 16.05.2017.
6. I have considered the submissions of the learned counsel for the parties and have also gone through the annexures appended to the writ petition.
7. Having regard to the grievance expressed by the petitioner and having heard the learned counsel for the parties, this Court considers it appropriate to dispose of this writ petition, at the motion stage itself.
8. At this juncture, it is appropriate to refer to the provisions contained in Section 10 and Section 16 of the Indian Telegraph Act, 1885, which read as under:-
"Section 10. Power for telegraph authority to place and maintain telegraph lines and posts.--
Page No.# 4/10 The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along or across, and posts in or upon, any immovable property :
Provided that --
[a] the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the Central Government, or to be so established or maintained;
[b] the Central Government shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraph authority places any telegraph line or post; and [c] except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and [d] in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in clause [c], shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.
Section 16. Exercise of powers conferred by section 10, and disputes as to compensation, in case of property other than that of a local authority.--
[1] If the exercise of the powers mentioned in Section 10 in respect of property referred to in clause [d] of that Section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them.
[2] If, after the making of an order under sub-section [1], any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under section 188 of the Indian Penal Code, 1860 [45 of 1860].
[3] If any dispute arises concerning the sufficiency of the compensation to be paid under Section 10, clause [d], it shall, on application for that purpose by either of Page No.# 5/10 the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.
[4] If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the Court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section [3], that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it.
[5] Every determination of a dispute by a District Judge under sub-section [3], or sub-section [4] shall be final : Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same."
9. Section 10 of the Indian Telegraph Act, 1885 is with regard to the power of the telegraph authority to place and maintain telegraph lines and posts. Clause [b] of Section 10 has empowered the telegraph authority to place and maintain a telegraph line or under, over, along or across, in or upon any immovable property. At the same time, the provision of Section 10 [b] of the Indian Telegraph Act, 1885 has made specific that while acquiring the power to install a telegraph line, the Government does not acquire any right other than that of user in the property. Section 10 [d] of the Indian Telegraph Act, 1885 has laid down that the telegraph authority while exercising such powers, shall do as little damage as possible, and when the telegraph authority exercises the powers in respect of immovable properties, it shall have to pay full compensation to all persons interested for any damage sustained by reason of the exercise of the Right to Use by the telegraph authority.
10. Section 68 of the Electricity Act, 2003 mentions about overhead lines. As per sub-section [1] of Section 68, an overhead line can be installed or can be kept installed above ground in accordance with the provisions of sub-section [2] thereof, with prior approval of the Appropriate Government. As per sub-section [3] of Section 68, the Appropriate Government can impose such conditions as appears to it to be necessary while granting approval under sub-section [1]. Section 69 of the Electricity Act, 2003 Page No.# 6/10 speaks of notice to the telegraph authority. Section 164 of the Electricity Act, 2003 has, inter-alia, provided that the Appropriate Government may, by order in writing, for the placing of electric lines or electrical plant for the transmission of electricity, confer upon any public officer, licensee or any other person engaged in the business of electricity under the Electricity Act, 2003, subject to such conditions and restrictions, if any, as the Appropriate Government may think fit to impose and to the provisions of the Indian Telegraph Act, 1885, any of the powers which the telegraph authority possesses under the Indian Telegraph Act, 1885 with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained.
11. It is by virtue of the provisions contained in Section 68, Section 69 and Section 164 of the Electricity Act, 2003, the Appropriate Government can confer upon a licensee or any other person engaged in the business of supplying electricity under the Electricity Act, 2003, subject to such conditions and restrictions, any of the powers possessed by the telegraph authority under the Indian Telegraph Act, 1885 with respect to placing of telegraph lines and posts, for the purpose of placing of electric lines for transmission of electricity.
12. As per Section 2[38] of the Electricity Act, 2003, 'licence' means a licence granted under Section 14 of the said Act whereas as per Section 2[39] of the Electricity Act, 2003, 'licensee' means a person who has been granted a licence under Section 14. The PGCIL is a Central Transmission Utility [CTU] and as such, Central Transmission Utility, it is deemed to be a transmission licensee under the second proviso proviso to Section 14 of the Electricity Act, 2003.
13. As has been noticed above, Section 10 of the Telegraph Act, 1885 has, thus, empowered the telegraph authority to place and maintain a telegraph line under, over, along or across and post in or upon any immovable property. By virtue of the provisions of Section 68, Section 69 and Section 164 of the Electricity Act, 2003, any public officer, licensee or any other person engaged in the business of supply electricity under the said Act have been similarly empowered. The provision of Section 10[b] of the Telegraph Act, 1885 has made it specific that while acquiring the power to lay down telegraph lines, the Central Government does not acquire any right other than that of user in the property. As per Section 2[5] of the Electricity Act, 2003, the Appropriate Government under the Electricity Act, 2003 can be either the Central Government or the State Government. Section 10[d] of the Indian Telegraph Act, 1885 has asked the telegraph authority to do as little damage as possible and when it exercises the powers in respect of any property, to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. The provisions contained in the entire Page No.# 7/10 Indian Telegraph Act, 1885 do not contemplate any acquisition of land. Thus, when powers under the Indian Telegraph Act, 1885 read with the Electricity Act, 2003 are conferred by the Appropriate Government on any person including a licensee or a transmission utility like the respondent PGCIL to install any transmission line, no process of acquisition of any immovable property is involved as it acquires only the right of user in the property.
14. The Government of India in the Ministry of Power after analyzing all the issues related to Right of Way for laying of transmission lines in the country and in order to formulate a uniform methodology for payment of compensation in that connection, had taken the views of the State Governments and thereafter, formulated a set of guidelines for determining the compensation towards 'damages' as stipulated in Section 67 and Section 68 of the Electricity Act, 2003 read with Section 10 and Section 16 of the Indian Telegraph Act, 1885 and the said guidelines have been incorporated in a Circular dated 15.10.2015. It has been provided therein that such compensation towards damages would be in addition to the compensation towards normal crop and tree damages and the compensation amount would be payable only for transmission lines supported by a tower base of 66 KV and above and not for sub- transmission and distribution lines below 66 KV. By the circular dated 15.10.2015, all the States/Union Territories have been requested to take suitable decisions regarding adoption of the guidelines considering that acquisition of land is a State subject.
15. Following the above guidelines formulated by the Government of India, the Government of Assam has taken a decision that a similar payment methodology towards compensation shall also be adopted in the State of Assam. Accordingly, the Government of Assam in the Power [Electricity] Department has notified the following rates for payment of compensation towards damages with regard to Right of Way for transmission lines by a notification bearing no. PEL.219/2015/91 dated 10.03.2017, which was published in the Assam Gazette in its issue dated 16.05.2017 :-
· Compensation @85% of land value as determined by Deputy Commissioner/ BTC or any other competent authority based on Circle rate/Guideline value/Stamp Act rates for tower base area [between four legs at ground level] impacted severely due to installation of tower/pylon structure.
· Compensation towards diminution of land value in the width of Right of Way [ROW] corridor due laying of transmission line and imposing certain restriction at a maximum rate of 15% of land value as determined by Deputy Commissioner or any other competent authority based on Circle Page No.# 8/10 rate/Guideline value/Stamp Act rates.
For this purpose, the width ROW corridor shall not be more than that prescribed in table at Annexure-I and shall not be less than the width directly below the conductors.
· In areas where land owner/owners have been offered/accepted alternate mode of compensation by concerned corporation/Municipality under Transfer Development Rights [TDR] policy of State, the licensee/utility shall deposit compensation amount as per [i] & [ii] above with the concerned Corporation/Municipality/Local Body or the State Government.
The above guidelines shall be effective from the date of issuance of the above mentioned Government of India guidelines and shall be applicable for only those new transmission line/projects where construction have started after this date, i.e. 15.10.2015. This guideline shall not be applicable for existing transmission lines which are already in service or under construction before the aforesaid date, or for maintenance of any existing transmission line.
Annexure-I
ROW width for different voltage line*
Transmission Voltage Width of Right of Way [in Meters]
66 KV 18
110 KV 22
132 KV 27
220 KV 35
400 KV S/C 46
400 KV D/C 46
+/- 500 KV HVDC 52
Page No.# 9/10
765 KV S/C [with delta configuration] 64
765 KV D/C 67
+/- 800 KV HVDC 69
1200KV 89
* Width of Right of Way is as per Ministry of Environment & Forests [MoEF]
guidelines dated 05.05.2014.
This issues with the concurrence of Revenue & Disaster Management Department, Government of Assam, as well as the Finance Department, Government of Assam."
16. In the case in hand, the Right to Use has been sought to be acquired in the land in question for installing the transmission line over the petitioner's land in order to erect a tower in to install a transmission line in question. What is taken is only the right of user to install the electricity transmission line over the petitioner's land and to erect one tower on the petitioner's land and there is no intention to acquire the land.
17. There could be situations and circumstances when the Appropriate Government and/or a Transmission Utility in order to install a transmission line, electrical plant, etc. or to set up an office at a particular place for efficient distribution of electricity, etc. need a piece of land permanently. In only in such situation and/or circumstances of acquisition of land permanently, the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 Act would be applicable.
18. Reverting back to the fact situation of the case, it has clearly emerged that the respondent authorities in the PGCIL are installing a 400 KV D/C Lower Subansiri - Biswanath Chariali Transmission Line and in order to install such transmission line, the respondent authorities are exercising the right of way over a part of the petitioner's subject-plot. The petitioner has also asserted that a tower is also going to be installed over that part of the petitioner's subject-plot where the respondent authorities has exercised the right of way.
19. In the given facts and circumstances obtaining in the case, this Court considers it appropriate to dispose of this writ petition with the following directions:-
[i] The petitioner shall approach the concerned Deputy Commissioner specifying and identifying the land which falls within the Right of Way [RoW] of the Page No.# 10/10 transmission lines whereafter the concerned Deputy Commissioner of the Biswanath district shall verify about the genuineness of the claim through the Circle Officers and in the event their claims are found to be genuine, the damages shall be assessed as per the guideline.
[ii] If any of the petitioner is aggrieved by the assessment made by the Deputy Commissioner, the petitioner shall take necessary shelter under Section 16 of the Indian Telegraph Act, 1885 thereby, moving the territorial District Judge for enhancement of the damages inasmuch as in order to invoke the jurisdiction by the territorial District Judge, under Section 16 of the Indian Telegraph Act, 1885, there must be a dispute in respect of the compensation. Similarly, if the respondent PGCIL is aggrieved on the assessment made by the Deputy Commissioner, it shall also be at liberty to approach the District Judge concerned.
[iii] If the district authority had already assessed the compensation and petitioner is not satisfied petitioner is entitled to approach the concerned District Judge under Section 16 of the Indian Telegraph Act, 1885.
20. As the respondent authorities are going ahead with the process of installation of the transmission line, it is expected that they assess the damages caused to that part of the petitioner's subject-plot in an expeditious manner and after such assessment, the due compensation be paid to the petitioner accordingly. In that view of the matter, it is directed that the respondent authorities in consultation with the District Administration shall assess the damages caused to that part of the petitioner's subject-plot as expeditiously as possible preferably within a outer limit of 3 [three] months and after such assessment the payment shall be made forthwith thereafter.
21. This order disposes of the writ petition.
JUDGE Comparing Assistant